Ex Parte Yim et al

Patent Trial and Appeal BoardApr 25, 2013

11745792 (P.T.A.B. Apr. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte DANIEL H. YIM, BURL JACKSON BANDY, and UMA RAMACHANDRAN ____________________ Appeal 2011-002501 Application 11/745,792 Technology Center 3700 ____________________ Before EDWARD A. BROWN, REMY J. VANOPHEM, and ANNETTE R. REIMERS, Administrative Patent Judges. BROWN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-002501 Application 11/745,792 2 STATEMENT OF THE CASE Daniel H. Yim et al. (Appellants) appeal under 35 U.S.C. § 134(a) from the decision of the Examiner rejecting claims 1-7, 10-16, 18, 19, and 21-23. App. Br. 2, 5. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM. INVENTION The claimed subject matter is directed to a self-contained, disposable, single-use heat-generating apparatus and a method for providing therapeutic heat. Claims 1, 16, and 18 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A self-contained, disposable, single-use heat-generating apparatus, comprising: a heat-generating pack comprising: a first bag layer having a first surface area; a second bag layer having a second surface area, said second bag layer being fixed to said first bag layer, such that said first bag layer and said second bag layer define a plurality of pouches therebetween, wherein said second bag layer is fixed to said first bag layer by one or a plurality of seams; a heat-generating agent disposed in the pouches, said heat-generating agent arranged and configured to consume air at a predetermined air consumption rate in an exothermic reaction; at least one of said first surface area and said second surface area comprising an air permeable surface area having a predetermined airflow rate at which air is introduced to said heat-generating agent, said predetermined airflow rate being arranged and configured to be less than said Appeal 2011-002501 Application 11/745,792 3 predetermined air consumption rate, whereby a differential pressure is created between the first surface area and the second surface area, wherein said heat-generating agent remains substantially evenly distributed within said pouch; and wherein at least one of said first surface area and said second surface area comprises an adhesive disposed only on a portion of a perimeter of one of said first surface area and said second surface area, wherein the adhesive is disposed on a seam extending around the perimeter. REJECTIONS (1) Claims 1-7, 10-14, 16, 18, 19, and 21-23 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Abe (JP S57-207748; pub. Dec. 20, 1982),1 Usui (US 5,046,479; iss. Sep. 10, 1991), and Igaki (US 6,409,746 B1; iss. Jun. 25, 2002) or Cramer (US 5,860,945; iss. Jan. 19, 1999).2 (2) Claim 15 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Abe, Usui, and Igaki or Cramer. ANALYSIS Claims 1-7, 10-14, 16, 18, 19, and 21-23 – Abe, Usui, and Igaki or Cramer Claims 1-7 and 10-14 Claim 1 is directed to a heat-generating apparatus comprising a heat- generating pack comprising “a first bag layer having a first surface area” and 1 All references to Abe infra are to the English-language translation thereof. 2 Regarding claim 6, we note that the Examiner references Ueki (US 5,342,412; iss. Aug. 30, 1994) as providing exemplary evidence that features not explicitly described in Abe (i.e., placing an air-activated exothermic bag in a hermetically-sealed protective package) are well-known in the art of exothermic heat packs. Ans. 9. Appeal 2011-002501 Application 11/745,792 4 “a second bag layer having a second surface area,” “wherein at least one of said first surface area and said second surface area comprises an adhesive disposed only on a portion of a perimeter of one of said first surface area and said second surface area, wherein the adhesive is disposed on a seam extending around the perimeter.” The Examiner found that Abe discloses a heat pack having a first bag layer (air-permeable sheet 1) having a first surface area, a second bag layer (water-absorbent sheet 2) having a second surface layer, and an adhesive (adhesive layer 6) applied to the peripheral seam area of the heat pack. Ans. 4. The Examiner also found that each of Igaki and Cramer discloses placing adhesive on a peripheral portion of a heat generating apparatus. Ans. 7-8. The Examiner concluded that it would have been obvious to a person of ordinary skill in the art to modify the adhesive 6 of Abe to be formed on only a portion of a seam defining a perimeter of the apparatus in order to provide means for securing the apparatus to a support surface during use. Ans. 9. Appellants contend that neither Igaki nor Cramer discloses the claim limitation “wherein the adhesive is disposed on a seam extending around the perimeter,” as recited in claim 1. App. Br. 7. Appellants contend that Igaki teaches placing an adhesive material 7 around the outside of an outer bag 5, but fails to disclose placing the adhesive on a seam. Id. Appellants also contend that Cramer fails to disclose a seam anywhere on its elastic thermal knee wrap, and thus, fails to disclose an adhesive disposed on a seam. Id. at 8. Thus, Appellants contend that the combination of Abe, Usui, and Igaki or Cramer fails to disclose each of the features recited in claim 1. Id. at 9. Appellants’ contentions are unpersuasive. Appeal 2011-002501 Application 11/745,792 5 Abe discloses a warming device A constructed from a bag member 4, and that bag member 4 is formed by layering an air-permeable sheet 1 and a water-absorbent sheet 2 and sealing the edges of both sheets 1, 2 to form a peripheral seam area. See Abe, p. 4, l. 22 – p. 5, l. 4; fig. 1. An adhesive layer 6 is formed on the peripheral seam area of the water-absorbent sheet 2 of the bag member 4. See Abe, p. 7, ll. 9-12; figs. 1 and 2. Thus, the Examiner found that Abe alone meets the limitation, “wherein the adhesive is disposed on a seam extending around the perimeter,” and Igaki and Cramer are not necessarily relied on for showing this feature of claim 1. See Ans. 4-5, 11. Appellants do not apprise us of any error in the Examiner’s finding that Abe alone discloses applying an adhesive to a peripheral seam area of a heat pack. See Ans. 4; see also App. Br. 5-9. In light of the Examiner’s finding, Appellants’ contentions regarding Igaki and Cramer are unpersuasive. We understand that the Examiner cited Igaki and Cramer as providing teachings that are cumulative to those of Abe. We agree with the Examiner that Abe, taken alone, discloses structure that meets the limitation “wherein the adhesive is disposed on a seam extending around the perimeter,” as recited in claim 1, and that the teachings of Igaki and Cramer are merely cumulative. See Ans. 11. Thus, Appellants’ contentions are insufficient to overcome the Examiner’s conclusion of obviousness for claim 1. Therefore, we sustain the rejection of claim 1. Claims 2-7 and 10-14 Claims 2-7 and 10-14 depend from claim 1. Appellants’ contentions (App. Br. 9) and the Examiner’s findings and conclusions (Ans. 3-12) regarding the rejection of these dependent claims are similar to those Appeal 2011-002501 Application 11/745,792 6 discussed supra for claim 1. Thus, we sustain the rejection of claims 2-7 and 10-14 for reasons similar to those discussed supra for claim 1. Claim 16 Independent claim 16 is directed to a heat-generating apparatus and recites limitations substantially similar to those recited in claim 1. Appellants’ contentions (App. Br. 9-11) and the Examiner’s findings and conclusions (Ans. 3-12) regarding the rejection of claim 16 are similar to those discussed supra for claim 1. Thus, we sustain the rejection of claim 16 for reasons similar to those discussed supra for claim 1. Claims 18, 19, and 21-23 Independent claim 18 is directed to a method for providing therapeutic heat and recites limitations substantially similar to those recited in claim 1, as discussed supra. Appellants’ contentions (App. Br. 11-12) and the Examiner’s findings and conclusions (Ans. 3-12) regarding the rejection of claim 18 are similar to those discussed supra for claim 1. Thus, we sustain the rejection of claim 18 for reasons similar to those discussed for claim 1. Claims 19 and 21-23 depend from claim 18. Appellants’ contentions (App. Br. 12) and the Examiner’s findings and conclusions (Ans. 3-12) regarding the rejection of claims 19 and 21-23 are similar to those discussed supra for claim 18. Thus, we affirm the rejection of claims 19 and 21-23 for reasons similar to those for claim 18. Appeal 2011-002501 Application 11/745,792 7 Rejection of claim 15 – Abe, Usui, and Igaki or Cramer3 Claim 15 depends from claim 1. Appellants’ contentions (App. Br. 13) and the Examiner’s findings and conclusions (Ans. 10-12) regarding the rejection of claim 15 are similar to those discussed supra for claim 1. Thus, we sustain the rejection of claim 15 for reasons similar to those discussed supra for claim 1. DECISION The Examiner’s decision rejecting claims 1-7, 10-16, 18, 19, and 21- 23 is AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED mls 3 The stated Grounds of Rejection indicates that claim 15 is rejected over Abe in view of Usui and Igaki or Cramer, and further in view of Igaki. Ans. 10. As discussed supra, we understand that the Examiner’s rejection of claim 1 cites to Igaki or Cramer merely as providing cumulative evidence. We understand that the Examiner’s rejection of claim 15 relies on Igaki for teaching that pouches may include a scented substance. See Id.